IN THE HIGH COURT OF LESOTHO In the matter
MAKAFANE LETSOELA EMMANUEL LETSOELA
Delivered by the Hon. Acting Mr. Jusctice M. Lehohla on
the 15th day of September, 1987.
The two accused who are brothers stand charged with the
crime of murder of their uncle a 65 year old Isdora Letsoela
or about 31st May 1985 at Ha Letsoela in the Berea
district. The charge sets out that the accused in order to
accomplish the killing
of the deceased were acting in concert.
In an opening address the Crown stated that it would
through evidence seek to establish that the motive for the killing
was a long
standing dispute over a tree plantation. Formal
admissions on behalf of the accused were made by Mr. Maqutu on 18th
They are as follows:
Severe head injuries on the deceased;;
Compatibility of those injuries with use ofblunt
The fact that deceased had been attended
to in Leribe before being later transferred to Queen
Elizabeth 11 hospital Maseru before he died;
(4) The fact that under schedule 9 of observations as
to external appearances in Ex"A" are listed
four injuries set out as follows:-
a) 8 cm (left) pariental scalp (b) 3 cm (left) frontal
(c) 5 cm (left) temporal scalp,
(d) 1cm mid-chin (submental)
That at the time of death the injuries hadbeen
That deceased was aged about 65 years andwas obese.
Further that others are notclear and are incomprehensible.
On the application of the public prosecutor who
conducted the preliminary examination the magistrate accepted the
A then marked "B". The allegation was that
the medical practitioner who had. performed the post-mortem
since left the country for good.
There was also accepted in that Court Exhibit "All"
an admission form drawn up by a doctor who admitted deceased when he
came to Maseru. The admission of this document before this Court was
strenuously opposed by Mr. Maqutu for defence. At the end
of the day
i.e. on 21st August 1987 Mr. Mdhluli for the crown having failed
after making a diligent search to secure documents which
facilitate the tracing of this document to its author, submitted that
he was not going to seek any postponement to enable him
to conduct a
further search. Consequently Exh"A11" was ruled unusable
before this Court.
However it was further shown in the document Exhibit "A"
which was handed in that
"The whole of (left) pariental bone was separated
from the rest of the vault and there was a huge collection of blood
There is no doubt in my mind that to achieve the results
set out in the paragraph immediately above savage or
brutal force must have been used.
It remains therefore to determine in the light of
evidence adduced on both sides who brought about such results.
P.W.1 Moifo Letsoela testified on behalf of the Crown
that accused 1 and accused 2 are his uncles. They live in a village
is a headman and therefore are his subjects. The deceased
Isdora Letsoela was also his uncle and subject. The witness knew of
dispute between the two accused and deceased. The dispute was
over tree plantation. The actual dispute which resulted in a fight
that led to deceased's death centred on a tree that had been grown in
a donga. The tree was in part of the land which deceased had
legal battle against accused 2.
P.W.1 testified that deceased made a complainant to him;
namely that the tree that he had chopped had been removed without his
or consent by accused 2,
Thereupon P.W.1 detailed his personal messenger called
Sefoboko P.W.2 accompanied by Letsie Molapo and deceased to find out
the tree complained of had been in fact in the portion of the
land where deceased had won it in litigation.
P.W.1 went further to say he had in fact informed
accused 2 in deceased's presence that an inspection was to be held
complaint lodged by the deceased. It may just serve
purposes of clarity to mention that accused 2 was involved in the
over the land
in question on behalf of a relative of his called
Mphonyane who laid claim to it by inheritance from her mother
P.W.1 further stated that Sefoboko came and made a
report to him after a long time and that deceased was absent when
this report was
made. After that report P.W.1 said he met accused 2
very late after all and. everybody had made reports to him. He said
spoke to accused 2. Instead he went to Ntsoaki Khetha's
home after receiving the report. On arrival there he was informed
deceased had been taken to hospital and later that he had died
in hospital. Apart from this dispute he knew of no disharmony
accused 2 and the deceased. With regard to relations between
deceased and accused 1 the witness said the two used to talk to each
other but was quick to state that he was not always with any of these
people involved. He explained that the reason for this was
stayed in different homes, though in the same village. He was not
asked if he would have known should relations have not
been as he
stated. In any event I noticed a veiled attempt on P.W.1's part not
to commit himself about any knowledge of bad blood
deceased and any of the accused.
There was an attempt in cross-examining this witness to
show that at the appeal stage Mphonyane won the land in which the
The witness said he was not present so he knew nothing
about the events at appeal. However what I find important in this
of the case is that at the time of deceased's death
there was a Court's decision in his favour regarding the
tree and the land in which it grew.
P.W.1 said he told accused 2 the previous day that an
inspection of the area in dispute would be held the following day. He
that accused 2 came late after others had left for the
plantation. He also admitted that the man who accompanied P.W.2 to
was Letsie Molapo who is not his subject. It happens
to be a fact that Letsie Molapo stayed at deceased's house because
was married to this Letsie Molapo's sister, P.W.1 however
regarded P.W.4 as either a friend of the deceased or his employee.
thing he knows is that P.W.4 used to herd after deceased's
animals. However at and around the time in point he was no longer
after deceased's animals.
Asked if.P.W.4 at this time was working for deceased
P.W.1 said "I don't know but he was always there." In the
the evidence that revealed that P.W.4 was related to
deceased's wife a different complexion is given to the strenuous
showing that he was just a lackey of the deceased.
P.W.1 further conceded that the correct procedure would
have been for the chief's messenger to go to the plantation
the two disputants i.e. deceased and accused 2. He
also conceded that it was unfortunate that P.W.2 left with deceased
He ...was referred to a statement appearing on page 2 of
the P.E. record wherein he is recorded as having said
"I saw them on their arrival from the
tree plantation and accused 2 was the first to arrive. The messenger
came later on and reported
that he had run away when there was a
fight on the way back. He said that the two accused were fighting
against the deceased Isdora
Letsoela. Accused 2 made a report to me
that he was intervening when accused 1 fought the deceased."
P.W.1 admitted as true the statement he made in the
magistrate's court and further that events were then relatively more
the time in his mind. He was emphatic though that accused 2
came late to him and. was consequently told that others had left for
In his turn P.W.2 Sefoboko Sefoboko told the court that
he is P.W.1's subject, does nothing for a living but truly knows the
as well as the deceased. He did not know how deceased
carried on with the two accused.
In June 1985 he was called to P.W.1's home through
P.W.1's agent P.W.4 Letsie.
On arrival at the chief's place P.W.2 was asked by P.W.1
to intervene between deceased and accused 2 for they were disputing
a tree. Thereupon P.W.2 went looking for accused 2 but did not
find him at his home. However he left the message with accused 2's
wife that he and the man accompanying him i.e. P.W.4 Letsie were
setting out for the plantation. Then P.W.2 proceeded to tell the
court that he and his company waited for a long time for the two
accused but when these did not arrive he, P.W.4 and deceased left.
On arrival at the plantation P.W.2 saw a tree in a donga. This was
tree he had been detailed to inspect.
Then he and his company returned. On their way-back
home they met accused 2 whom P.W.2 told that he and his company were
returning from the plantation having waited for him to no
avail before coming to the plantation. Accused 2 proceeded on his
to the plantation.
After sometime P.W.2 while still walking home with his
companions saw accused 2 and his brother Makafane accused 1 catch up
There and then accused 1 hit deceased at the back of the
head and felled him. Accused 2 hit the deceased too while the
was lying on the ground. P.W.2 says that when thus assaulted
deceased had not said anything to any of the accused. Referring to
disposition of the two accused when they arrived and when they
assaulted the deceased P.W.2 said their eyes appeared furious. He
further testified that both accused were using sticks to assault the
His mode of intervention on behalf of the deceased was
by. making verbal pleas to the accused asking them why they were
deceased and whether they didn't realise they were
injuring him, P.W.2's pleas were not heeded. Then he left in order
to the chief. Even as he left the two accused were beating
the deceased up. He further said he didn't see P.W.4 when he left
scene because he was running away.
He came back later to the scene at around 10 a.m. or
after. Deceased had already been taken away then.
P.W.2 said he learnt of deceased's death afterwards. He
never knew of any quarrels between deceased and any of the accused.
no knowledge of any of their blood or family ties. He never
even knew of the dispute between Mphonyane and deceased over the
He was adamant that neither he nor any of his companions
was armed at the time of the incident, that deceased didn't fight
that deceased was lying on the ground when he ran
away and that he had not said anything when the assault started till
he ran out
of earshot of the deceased.
Under cross-examination he said he was not aware that
his mission required him to reconcile the parties involved in the
In fact in re-examination he said his was to go and inspect
with the parties the object around which the dispute revolved.
He placed the time at which he and his companions went
to the forest at about 9 a.m. while the time at which the fight took
was about 10 or 11 am.
The plantation was estimated at about two miles from
home. (The witness pointed at the mountains in the Free State as the
his estimation of the distance in question). It was clear
to me that at this juncture proceedings had sunk into an area which
very difficult to rely on namely the illusive estimation of an
ordinary Mosotho regarding time and distance. My own estimation of
the distance between the court room and the Caledon which divides it
from the mountains is two miles. The mountains are a good fraction
of this distance away from
the Caledon itself.
The following questions put by the defence counsel will
give a mere glimpse of what I mean to illustrate:-
"If you did go to the plantation then you wouldn't
be back from there before an hour -?
That's according to my estimation as I view this".
"You must have gone there at eight not nine
o'clock? I believe you for I can't calculate the time."
Nothing much turns on this, though it would have been
beneficial if there had been some more clarity as to the times and
However be that as it may.
P.W.2 denied that it was deceased who struck accused 1
with a stick first. He denied the suggestion that it was because he
telling the truth that he chose to say deceased said nothing
before and during the fight. He denied that deceased was armed with
Mr. Magutu for the defence made reference to a
medical report which the crown admits was on its file though it does
not admit its contents.
Relying on this report Mr. Maqutu put
to P.W.2 the question that accused 1 was injured on the day of the
fight and that the form shows he sustained an injury which
had to be
sutured. P.W.2 admitted that this was a matter of surprise to him.
He however pointed out that he did not witness the
entire fight to its close as he had to flee. It was strange though,
that the chief
got the report of the fight from accused 2 who left
the scene much later than P.W.2 yet P.W.2 says he never went anywhere
going to the chief's place. For that matter P.W.2 said
he even ran to the chief's place from the scene. The distance
chief 's place and Ntsoaki's where the fight took place
was estimated at between a kilometre and a mile as the crow flies
court room to RLDF quarters. It would seem to me that P.W.2
-is not truthful in suggesting that despite the fact that he had a
head start and was running he was beaten to the chief's place by
accused 2 who it was not even suggested went there running. P.W.2
must either have gone to the chief's place via some other place or
must have hidden somewhere along the way to rest in order to
himself from the fright he received on seeing the fight
It was put to P.W.2 that parties to the fight were not
silent and that P.W.2 must have heard deceased swear at the accused
them "Lifolotsana" meaning abortions or slinks a
term used in Sesotho to. refer to a calf born dead; often born so
He denied this.
P.W.2 readily conceded that the chief's place was about
300 to 400 yards from the scene of the fight. Surprisingly this did
him recoil with any self-doubts despite that the estimation
he gave of the same distance was far much greater.
P.W.2 was taken to task about why he ran away despite
that there was no question of danger posed by any of the accused to
explained that he ran away to report to the chief what he had
observed befalling the deceased. He conceded that he took the
route to the chief's
place yet amazing to relate he is reported to have come
there much later than accused 2. It may be worth noting though that
the disparity or conflict as to what P.W.1 said at PE. and in
this Court on the question of who between accused 2 and P.W.2 arrived
first to P.W.1 the latter was not taken to task. The conflict having
been established defence counsel found it fitting in his address
the court to say the only conclusion to reach having considered this
conflict is that P.W.1 had been got at by the family of the
It would have been wise to put to P.W.1 this conclusion in order to
give him an opportunity to admit it or deny it. I
think it would be
rash to regard as valid a conclusion reached in circumstances set out
in defence counsel's submission in the light
of P.W.1's otherwise
straight forward evidence, not tainted by any wisp of bias or
deliberate attempt to mislead the court.
Under cross-examination P.W.2 was adamant that as they
were walking deceased was hit and he fell and that accused 2 joined
belabouring that ensued. He gives as the reason of his
insistence on the accuracy of his narrative the fact that he was
he saw these events occur in his presence. He insists that
his intervention was confined to verbal pleas to the accused to stop
To the question put: "Letsie also did nothing -? I
didn't see what he did" he replied.
it was put to him "You ought to have seen what Letsie claims to
have done if you were present when deceased was hit -?
I didn't see
what Letsie did."
"Letsie says at Magistrate's Court:
Accused 2 joined the assault while deceased was still on
his feet and staggering before he fell -? I didn't see that,"
"Accused 2 intervened and stopped the fight and did
not assault the deceased -? No one intervened. They were both
P.W.2 insisted that he saw accused 1 hit the ' -deceased
several times. He however denies that the hitting was effected
before the deceased fell. His narrative is "I saw
him hit deceased once and he fell". He said the stick used by
1 to hit deceased was the timber stick yellow and brown in
colour. He denied that accused 1 used the iron rod of about 2½ feet
To the question - "That stick which is about a
metre long belongs to accused 2 -? It was carried by accused 1"
- he replied.
He said he was not certain if accused 2 was carrying the
Under re-examination he explained that he left the scene
when deceased fell and was being belaboured.
P.W.3 Richard Letsoela testified to his knowledge of
quarrels between deceased and accused's parents over the plantation.
that the disputed plantation between deceased and
accused 2 was awarded to deceased. He denied conspiring with anybody
the Court. Otherwise the balance of his evidence was no
more then hearsay.
P.W.4 Letsie Molapo testified that before 31st May 1985
he stayed at deceased's place. He grew up there as deceased is his
On the day in question he had been ordered by P.W.1 to
go and call P.W.2 with whom he came along. He had been with
earlier when the two of them went to P.W.1's
place. Then at about 6 am, they set out for the plantation to inspect
the source of
deceased's complaint. He explained that this was after
My reference to the 1985 Legal Diary showing times of
sunrise and sunset at Johannesburg in standard time of South Africa
the sun rose only at 6.46 am, on 31st May 1985. In respect
of Ha Letsoela one would make an allowance of plus or minus two
for the sunrise on that day.
P.W.4 said that he and deceased and P.W.2 came to the
plantation and saw that one tree had been cut and further testified
of the accused was present when this inspection was going
on. After ascertaining the facts in the plantation they went back
When they were near Ntsoaki's home the two accused caught up
Then accused 1 who was on horseback dismounted, drew a
sword and came towards the deceased. He explained that the object
1 held was shiny and sharp. He said the deceased was at
the time bending trying to tie his shoe. Accused 1 came rushing to
without saying anything started beating deceased with
it behind the right ear. Accused 2 mounted a horse and
immediately dismounted it and rushed towards deseased
armed With a timber stick and hit deceased with it while the
latter tried to stand up. He said accused 2 then pulled
a sword from under his blanket and struck deceased with it on the
later under the chin. He said at this time P.W.2 had
already run away as he fled at the stage when accused 1 rushed at the
He supports P.W,2's evidence to the effect that P.W.2's
intervention consisted of words to wit: Fellows what are you doing
the man I am walking with," and further to the extent
that none of the accused heeded that oral intervention. He testified
that the beating took place for a long time that he said he was not
able to estimate and that he tried to intervene by throwing stones
the accused but was surprised and disturbed by someone who came from
behind and threw a stone at him forcing him thus to betake
from that spot to another from which he no longer threw any stones
but waited and watched.
Under cross-examination he conceded that the length of
time spent by accused belabouring the deceased could not have been
three quarters of an hour.
In his evidence in chief he explained that after the
blow received by deceased from accused when the former was trying to
never tried to rise again. He further stated that deceased
was not carrying anything with which to ward off the blows delivered
the two accused. He said he knew the timber stick and that it
belongs to accused 2 and that he saw him use it at the material time
on 31st May 1,985.
With respect to P.W.2 it was stated by P.W.4 that he was
carrying a twig. He denied any knowledge of the cable stick. He
that deceased was carrying it at all. He was shown
half length of a fencing rod commonly referred to as a dropper used
fences. This was wrapped in masking tape. P.W.4
said he never saw it on the day of the events.
He denied that deceased directed the word "Sefolotsana"
to the accused. He went so far as to say he didn't know what it
means, A very strange thing indeed coming from a man who is reputed
to have been herding after live stock for a long time. It is
doubtful that even if he lived in a rural society which adhered
firmly to the motto: See no evil say no evil and hear no evil the
utterance of the word sefolotsana would escape P.W.4's ears, or his
knowledge of the object with which that word is associated.
P.W.4 testified further that after the accused stopped
beating the deceased they left him there lying on the ground while he
to report to the chief. He then went looking for a vehicle which
was later used for conveying the deceased to Hlotse hospital. The
deceased was still alive then, P.W.4 saw the injuries on the
deceased. They consisted of a wound behind the ear another on top of
the head, others on chin and left thigh. Deceased was not talking
when conveyed to Hlotse and later to Queen Elizabeth 11 Hospital
Maseru by ambulance accompanied all the while by P.W.4.'" To
P.W,4's observation deceased was in the same condition on arrival
Maseru as he had been when he came to Hlotse.
Under cross-examination he said the swords used by the
two accused were about 2½ feet long. That they were shiny and that
1's sword was wrapped in black tape at the handle. The rest
of its body was also sharp. As for accused 2's he said he could not
its handle. He said the belabouring with these swords on deceased
lasted a long time. The time was estimated at about 45 minutes
the time from which Court started at' 9.30 am. to 10.15.am. being the
point in time at which P.W.4 gave the foregoing reply.
said ,he. could not estimate the time and further said he has not
been conscious of the passage of time since the start
of his evidence
to the moment in point.
Defence Counsel put to him the question: "Had they
spent all that time the head where they were concentrating their
have been mangled -? I am not the one who was.
assaulting" he replied.
"This whole assault with swords is a figment of
your imagination. It is improbable -? It is not imagination. I saw
in my presence." "For the time you estimated the
deceased was being hit non-stop -? I had no watch I don't know how
minutes it took."
"They hit him with these swords so many times that
it was hard to count -? Yes".
"On a fallen man -? Yes" "Using words-?
Yes" "If what you say is correct you would see many wounds
I found four wounds.
"Only 4 yet the man was hit innumerable times -?
The Court asked at this stage:
"Didn't it surprise you that they were only 4
despite the many blows delivered to inflict them -? There were some
on the ribs
He conceded that he was suggesting there were more
wounds than he had mentioned.
He was referred to page 7 of the P.E. record and shown
that he had said nothing about the wounds he had mentioned at the
court. At P.E. he had referred to the following wounds:-
one over the left eye
another over the middle of the head
one on the lower lip
The other wound on the right thigh.
He said he was surprised that the doctor's findings
revealed that injuries were consistent with use of blunt force.
He denied the accused's story put through their counsel
that deceased looked towards accused 1 and said "I won a case
their father Ralipoli who has died, I don't see what they
being Lifolotsana think they can dispute over a plantation with me."
He denied that accused 1 thereupon asked what deceased was saying.
He further denied that at that point deceased rushed towards
1 and hit him with a cable stick on the forehead. He denied that
accused 1 hit deceased with the iron rod. He conceded
that he used
stones but qualified his answer by saying he only used stones at the
time the accused were assaulting the deceased.
He denied accused 2's
that P.W.4 threw a stone which missed accused 2 such
that he dismounted from the horse with the result that P.W.4 ran
away. He further
denied that it was immediately-after he had run to
the hillock 30 paces away that accused 2 intervened the deceased
and that it
was then that deceased followed
He denied accused 's version that he assaulted deceased
in self-defence and that accused 2 intervened He denied P.W,1's
that accused 2 reached him before P.W.2 did.
Although he had earlier said they left for the
plantation at sunrise he later said the sun rose when he and the
deceased and P.W.2
approached the plantation. He explained that they
had to go early to the plantation because it is far away - a distance
Ha Thamae and PMU. estimated at about 6 km.
Apart from the fact that P.W.4's story seems to be
highly exaggerated as to the length of time spent by the accused
deceased it does not sound credible as to its
reference to the use of swords by the accused on deceased. It is
why it was only when asked by court whether the
stone thrown by the stranger who forced him to betake himself a
distance away hit
him, he said it hit him between the shoulders. One
wonders why at the time he mentioned this particular incident he did
the man hit him with stone instead of confining himself to a
general statement implying that the man threw that stone in his
P.W.5 Detective Trooper Leuta told the court that he was
involved in the investigation of this case and that he arrested
at Maputsoe in connection with deceased's murder. Accused
1 gave him the iron rod exhibit 1 and said it had been used in the
with the deceased. He arrested him on 3/6/85. When P.W.5 met
accused 1 on 2/6/85 accused 1 showed him an injury he said he had
at the fight with deceased. This injury was on the head.
P.W.5 made no other observation besides the injury he was shown.
Under cross-examination P.W.5 conceded that he saw
accused 1 on 31/5/85 and gave him a form with which to see a doctor.
shows the time 18.00 hours as the time when accused 1 was
attended to at Maluti Hospital at Mapoteng.
It was however pointed out as strange that accused 1
should have sought assistance of Mapoteng police station instead of
police station which is nearer not only to his home but
to the scene of events. Stranger still was the fact that accused 1
to the policeman who issued the form to him that deceased was
still at home and that he never mentioned that deceased had sustained
serious if any injuries at all during the fight.
Indeed it was P.W.5's evidence that "nothing of
what he (accused) said made me suspect that the deceased was in a bad
P.W.6 Lt. Sgt. Mohlaka testified that he knows both
accused 2 following a report he had received earlier.
On 1/6/85 P.W.6 having warned accused 2 of the nature
and purpose of his visit to him warned accused that he was a suspect
matter of Isdora Letsoela's death.
Following this explanation accused 2 handed over to this
witness a brown and yellow timber stick exhibit "2". It is
evidence in chief that accused 2 said when handing
over to him this stick that this was the stick he used on Letsoela.
At this point in P.W.6's
evidence the assessors had been asked to
clear the court room but in keeping with the ruling in David
Petlane vs Rex 1971 1973 LLR 85 it was ruled that it does
not amount to a confession when an accused person says he assaulted
or even killed another
because "it contained no admission that
he had killed anyone intentionally or unlawfully" See Petlane
(supra) at 88 and 90.
P.W.6 further states that after arresting accused 2 he
inter viewed P.W.4 Letsie Molapo and asked him what deceased was
he was accompanying him on that day of the events.
Thereupon P.W.4 indicated to him a black cable stick consisting of
of wire measuring about one metre in length. The
witness handed in this cable marked exhibit "3" by this
Under cross-examination P.W.6 denied the suggestion that
accused 2 said when this witness came there he said "produce the
He further denied the allegation that accused 2 stated
that he had no sword, for as P.W.6 reasoned" I had never
sword from him."
He further disagreed with the invitation by the defence
counsel to the effect that accused 2 would say he never
used the stick but rather handed to P.W.6 the stick
being the one he carried that day.
He however insisted that despite his version to the
contrary P.W.4 Letsie Molapo is the one who gave him the cable stick
This important aspect in the case cannot be ignored
especially as it comes from the Crown witness. My conclusion with
it is that it is patently clear that P.W.4 was not telling
the truth when he said deceased had nothing in his hands on 31/5/85.
P.W.6 further denied that it was his own conclusion that
accused 2 said he used "Ex.2" in the fight.
If I may add at this point; the court's impression of
this witness is that he gave his evidence without bias or attempt to
either side. He strikes me as truthful and therefore as a
reliable witness. I have no doubt that his evidence taken as a whole
beyond reproach on its material respects.
At the close of the crown case accused 1 Makafane
Letsoela gave sworn testimony the purport of which was that while
on 31/5/85 the judgment which had been in his favour
with respect to the land in dispute was upset on appeal in 1986. He
that after the decision in 1986 there was no moreappeal on the matter.
As to the events surrounding deceased's death he said
that he had been told by accused 2 that there was going to be an
of a tree cut by deceased on 31/5/85. On the day in
question he set out for the
plantation at about 7.30 am. and met with deceased,
P.W.2 and P.W.4 on their way back from the plantation. He greeted
them and passed
on. On his arrival at the plantation he found accused
2 and asked what decision had been reached by him and the others he
on his way to the plantation. Accused 2 explained that he
had met with those others on their way back therefore he had not been
told of any decision.
Accused 1 then was no longer on horseback. His younger
brother was though. The two came along till they reached near
where accused 1 heard deceased say "As for these
lifolotsana, I'll show them a thing for not even their father ever
me in a case, what do they think they can do"
whereupon accused I asked what deceased was saying only to be there
and then hit
by the deceased on the head with the cable stick
Accused 1 was carrying "exhibit 1" the iron
rod. He delivered two blows to the deceased's head. He also says he
the third time. At this time he was being pelted with stones
by P.W.4, he says. He even reckons that one of those stones might
have hit the deceased. It was while he was hitting the deceased with
the iron rod that accused 2 came to intervene. He testified
deceased fell while thus being hit with the iron rod. As P.W.4 was
continuing to throw stones at accused 1 accused 2 stopped
accused 1 from attacking P.W.4.
Accused 1 says he did not hit deceased while lying on
the ground. He further says deceased rose but was
not hit yet he fell again. He pointed out that P.W.4 was
not telling the truth when he said he was using a sword to assault
He also pointed out that accused 2 never at all hit
After the deceased had fallen accused 1 says he took his
horse and rode home from where he went to Kolojane where he hoped to
soldiers to report to about his fight with Isdora. He however
did not find any soldiers there whereupon he reported to the chairman
of Kolojane village. A letter was issued to him and taken to the
police station where another was issued to be taken by him to
Hospital where his injury was attended to by a doctor. The
form he was given by the police to take to the doctor was handed in
He said that he handed the iron rod to the police after
Under cross-examination he said he knew deceased to be a
very shrewd man. He testified that he detested his shrewdness. He
deceased as old enough to be his father. Accused 1 said he
is illiterate. He further admitted that he was stronger than the
He denied that he disliked the deceased but his ways. He
thought deceased was cunning. He regarded deceased's ways with
Accused 1 says he was informed at night the previous day
that there was to be an inspection of the plantation.
He admitted meeting deceased, P.W.4 and P.W.2 on their
way back from the plantation.
He however denied knowing that P.W.2 was the chief's
representative. He said he never formed any opinion that the three
had been to
the plantation or that they had anything to do with it.
All he thought was that they were on some errand of their own unknown
him. However he conceded that he expected that they might have
been to the plantation. He did not ask them though if they had been
for according to him he thought messengers were yet to be detailed to
come to the plantation.
He went to the plantation where he found accused2. His.
younger brother told him that those people had done the inspecting on
own. He was not involved because he too when he came there
those people had already come back from the plantation.
He and accused 2 who was on horseback proceeded along
the way going home and intending to go and see P.W.1 but when they
with deceased's company deceased insulted him and his
Accused 1 says the offensive words were uttered in a
loud voice by the deceased facing him. When he inquired what
deceased was saying
the deceased then inflicted the blow with the
cable stick "Exh."3" on his head. Then the fight
started. P.W.4 began
throwing stones at accused 1.
Asked whether P.W.4 threw the stones before accused1
reacted to the offensive utterances by deceased he said "At the
delivered the blow." He said P.W.4 was about 3 paces
away when he started throwing
stones at him.
He concedes that he was confronted by two people from
two angles and that consequently his attention was divided between
the two i.e.
deceased and P.W.4. He further stated that deceased
missed him but hit his blanket when P.W.4 was throwing stones at him.
he had the iron rod in his hand he used it to belabour the
deceased with it. He however did not count the number of times the
rod hit deceased. He said he beat the deceased twice before he
fell down; and that after he fell he said "I beat him for 3rd
4th time. I don't know for he was fighting back". Asked how
deceased could have fought back when he had fallen, accused
beat him twice while he was in the standing position."
Accused 1 does not deny belabouring the deceased while
the latter was on the ground. He said he did not count the number of
he belaboured him. He remembers that accused 2 intervened. He
conceded that he did not remember the number of times he hit
while on the ground because he was besides himself with
Asked why he continued hitting the man lying on the
ground and whether he could in the circumstances regard him as a
danger to him
he replied "He appeared to be wanting to rise
Asked whether he had no compassion for a man who was not
only a relative but old enough to be his father when beating him so
accused said the deceased was not his father's equal and
that he was confused.
When it was pointed out to him that bones were found to
have been broken and deceased's jaw separated from the skull, accused
he would not admit causing that type of injury and suggested
that the man who was throwing stones might be responsible for it.
He however admitted that he could have caused the
serious head injuries found on the deceased.
It is strange that accused 1 should suggest at this
stage of the proceedings that P.W.4 hit deceased with a stone while
was lying down yet at no stage whatsoever in his defence
was it put to P.W.4 that he is partly responsible for injuries caused
the deceased. This suggestion is rejected as devoid of all truth.
Indeed accused 1 painted a very pathetic picture of the
events at this point when he was under cross-examination. He said
hit deceased with a stone when he had already been
separated from the deceased by accused 2 but realising that this
it appear as if the hitting by Letsie occurred when he
(accused 1) was no longer on the scene he sought to explain it away
"this took place for a short time."
Further "At the time you say Letsie threw stones
you allege you had stopped hitting deceased -? He threw stones when
fighting. Did he beat you -? He missed me.
All the time yet he was so close -? I was dodging.
Dodging stones and belabouring at the same time -?
I did not inflict more than 3 injuries.
How did you manage to dodge stones and beat up
deceased at once -? I did".
Accused 1 admitted that within the short time he alleges
the fight took place results were brutal and effective.
He was unable to give a reasonable explanation for the
fact that instead of deceased's venom being directed at accused 2 who
man concerned in the disputed land it should be directed at
someone who hadn't anything to do with it.
The version of accused 2 Manuel Letsoela as to the fight
is to all intents and purposes similar to that of accused 1. He told
court that when he and accused 1 caught up with deceased and
company deceased said "what do these stinks (lifolotsana) think
they can do when I have vanquished their father." Then accused 1
asked him what he was saying. But before he could even finish
sentence deceased had inflicted a blow on accused 1's head with
"Exh.3". Then accused 2's horse shied. As he corrected
course accused 2 was confronted with a stone which he dodged and he
dismounted amidst a number of stones thrown at him by P.W.4.
approached P.W.4 who ran away. Then he came to separate accused 1
from deceased who had fallen.
Regarding the arrest accused 2 says on arrival from
Ficksburg he found a policeman who was to arrest him in the company
and two other policemen.
Two of the policemen asked "where are the swords
and invited the chief to go along with them to accused 2's place.
Under cross-examination he said he saw deceased hitaccused 1 with a stick and that at the time he accused 2 was
still on horseback. P.W.4 was throwing stones at him as a result of
which he dismounted and chased after him. Regard being had to the
fact that P.W.4. was throwing these stones in order to relieve
deceased who was hard pressed by accused 1, it is difficult to
understand how as accused 2 put it "There were many stones
at me by Letsie." It is also difficult to see how if
indeed accused 2's efforts were directed at intervening in order to
accused 1 from the deceased P.W.4 could be relentlessly
throwing stones at him (accused 2).
It is difficult to see how accused 2 hoped to effect his
intervention in the face of the following :
"As soon as you had ducked from the stones you
started chasing P.W.4 -? I was not chasing him but was going towards
Was it to greet him -? To ask him why he was throwing
stones at people who were fighting. You were going to confront him
-? Yes. He was then concentrating on you -? Yes, When he
was running away -? I then turned to intervene between accused 1 and
As a coping stone to his interest in the encounter
accused 2 said he did not observe any injuries on the deceased after
accused and deceased. Asked why he didn't observe the
injuries he said it was because he was intervening and thereafter he
to the chief's place to report. Indeed he went so far is
to say that when he left the deceased the latter was in a
sitting position. Accused 1 says deceased was lying on the ground.
There is authority in Hoffman's South African Law of
Evidence 3rd Edition at page 461 for the view that
"In certain circumstances however the
making of a false statement may throw an unfavourable light upon a
fact previously neutral, which
can become an item of corroborative
In Broadhurst vs Rex 1964 AC. at 457 the
following words appear and they are appropriate in the instant case.
" save in one respect, a case in which an
accused gives untruthful evidence is not different from
one in which he gives no evidence at all. In either case the burden
on the prosecution to prove the guilt of the accused. But if
on the proved facts two inferences may be drawn about the accused's.
conduct or state of mind, his untruthfullness is a factor which the
jury can properly take into account as strengthening the inference
While it is understandable that accused 1 should
naturally adopt an attitude of a protective brother towards accused 2
by shielding him from the commission of the
offence charged, and
allot to himself the entire blame it defies all logic that accused 2
should in his untruths contradict even
On the submissions made by both counsel and concessions
by the crown that there might have been provocation offered by the
to accused 1 coupled with the undeniable fact on
evidence that deceased
was carrying the cable stick with which he struck
accused 1 on the head I have no difficulty in finding that though
1 exceeded the bounds of self-defence by a very
great margin indeed to the extent that he kept on hitting a man who
was already on
the ground lying there and helpless.
Accused 1 is found guilty of culpable homicide.
As for accused 2 I have shown that his version of the
events cannot sincerely overcome P.W.6's version that he admitted
the timber stick on the deceased. As pointed out by the
Crown the evidence of P.W.4. was tainted with exaggerations and
lies. The same cannot be said of the evidence of P.W.2. The
events which he witnessed before fleeing have a ring of truth in
He said that after the deceased had been beaten by accused 1
and had fallen on the ground accused 2 Joined in the assault, P.W.2
was not shaken in this aspect of his evidence that associated accused
2 directly with the vicious assault on the deceased.
Mr. Maqutu argued that accused 2 be given benefit
of doubt. But Malan J.A,'s words in R vs Mlambo 1957(4) SA.
727 A.D. at 738 are very appropriate to the effect that .
"An accused's claim to the benefit of a doubt when
it may be said to exist must not derive from speculation but must
a reasonable and solid foundation created either by
positive evidence or gathered from reasonable inferences which are
not in conflict
with, or out weighed by, the proved facts of the
I do not think that accused 2's claim to benefit of
doubt is Justified.
He is also found guilty of culpable homicide. Sentence :
Accused 1 is sentenced to 4 years' imprisonment.
Accused 2 is sentenced to 4 years' imprisonment or M4000
of which half is suspended for 3 years on condition that he is not
of a crime involving violence committed during the period
of the suspension.
15th September, 1987.
For the Crown : Mr. Mdhluli For the Defence: Mr.
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